In the timeless words of Dr. Seuss, “From there to here, from here to there, funny things are everywhere.”[1]
On February 25, 2015, the United States Supreme Court decided Yates v. United States,[2] a case about evidence destruction and the Sarbanes-Oxley Act of 2002. Under that statute, a person commits a felony if he “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in” any “record, document, or tangible object” with the intent to impede a federal investigation. 18 U.S.C. § 1519. Early last decade, Congress had passed Sarbanes-Oxley in the wake of the finance and accounting scandals involving the collapse of Enron Corporation.
Tom Doyle, fishing for appropriately-sized yellowtail amberjack
Funny thing about the Yates decision, though: the defendant had not shredded documents or falsified accounting entries. Defendant John Yates was the captain of the Miss Katie, a commercial fishing boat in the Gulf of Mexico. He found trouble when a deputy agent from the National Marine Fisheries Service stopped the boat on the high seas for a routine inspection. On the boat, the deputy agent identified 72 undersized red grouper, measuring and recording size information for each fish. The deputy agent then issued a citation, segregated the undersized fish in wooden crates, and directed the crew to surrender the crates when the boat finished its voyage.
Four days later, when the Miss Katie reached shore in Florida, the fish in the crates had mysteriously grown to meet the size rules for red grouper. Under questioning, one of the crew members admitted that Captain Yates had ordered the crew to throw the 72 undersized fish overboard and substitute full-size fish in the crates. On that basis, a local United States Attorney prosecuted Captain Yates for destroying evidence in violation of § 1519 of Sarbanes-Oxley. The trial court convicted Captain Yates, and the Court of Appeals for the Eleventh Circuit affirmed.[3]
The United States Supreme Court granted certiorari, focusing on whether § 1519 extends to any “tangible object,” or whether § 1519 covers only evidence that somehow involves record-keeping or documents.
In its February 25th decision, the Supreme Court overturned the conviction, but without a majority opinion to define the scope of § 1519. Four Justices joined a plurality opinion (authored by Justice Ruth Bader Ginsburg), which concluded that, under § 1519, a “tangible object” is only one that is used to record or preserve information, and therefore the statute cannot cover the destruction of a fish.[4] Justice Samuel Alito voted to reverse but did not join the Ginsburg opinion; instead he wrote separately to state that his reading of the entire text of § 1519 led him to conclude that it could not cover Yates’ conduct.[5] Only four Justices voted to affirm the conviction, joining a dissenting opinion authored by Justice Elena Kagan, which found (remarkably) that “tangible object” means any object that is tangible. Accordingly, Justice Kagan wrote in her dissent, the Court should have read § 1519 broadly, and Captain Yates’ conviction should have been upheld.[6]
Given that Yates was decided on a 4-1-4 vote, lower courts may struggle to glean a precise legal principle from the Court’s decision. But at a minimum, Yates advises prosecutors to use § 1519 only when a case involves records, files, documents, or other means of storing information.
But even apart from Yates, parties should remember that evidence spoliation is still unlawful. A party who knowingly destroys evidence — especially when a government investigation is pending — may face obstruction of justice charges,[7] sanctions,[8] or liability under a common law claim for spoliation.[9]
Yates makes for a great story on its facts, but it is a murky decision. Any new principle will have to wait for the next case. Or, to reprise Seuss, “Today is gone. Today was fun. Tomorrow is another one.”[10]
Sources:
[1] Dr. Seuss, One Fish, Two Fish, Red Fish, Blue Fish, at 1 (1960).
[2] Yates v. United States, 2015 U.S. LEXIS 1503 (Feb. 25, 2015).
[3] United States v. Yates, 733 F.3d 1059 (11th Cir. 2013).
[4] Yates, 2015 U.S. LEXIS 1503, at *33.
[5] Yates, 2015 U.S. LEXIS 1503, at *34-*38.
[6] Yates, 2015 U.S. LEXIS 1503, at *39.
[7] See, e.g., 18 U.S.C. § 1512(c).
[8] See, e.g., Domanus v. Lewicki, 742 F.3d 290, 298-99 (7th Cir. 2014); and In re Grand Jury Proceedings, 280 F.3d 1103, 1105-06 (7th Cir. 2001).
[9] See, e.g., Duran v. Town of Cicero, 653 F.3d 632, 643-44 (7th Cir. 2011).
[10] One Fish, Two Fish (supra, n.1) at 36.
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